Calhoun v. Serio

TALIAFERRO, Judge. Plaintiff obtained judgment for several hundred dollars against Antonio Serio, of Ferriday, in the parish of Concordia, La. ([La. App.] 154 So. 465), issued execution thereon, and caused the sheriff to seize all of the right, title, and interest of said Serio, as an alleged partner in the alleged partnership of A. Serio & Son, operating the Serio Cash Grocery in said town of Ferriday. At the sheriff’s sale plaintiff became the adju-dicatee of the alleged rights of Antonio Serio thus seized and advertised. The present action was instituted by him against Guy Serio, alleged to be the other partner in said business, to liquidate its affairs under the direction of the court. Defendant denies that there was ever a partnership by the name of A. Serio & Son, and denies that Antonio Serio ever owned any interest in the business conducted by him (defendant) in Ferriday under the trade-name of “Serfo Cash Grocery,” but avers that said business is now, and has at all times heretofore been, owned exclusively by him; and that plaintiff took nothing by the sheriff’s sale. Upon the issues tendered by the opposing allegations, the case was tried. The question of fact involved was resolved by the lower court against plaintiff, and he brings this appeal. Appellee moved to dismiss the appeal for the reason that as the appeal was asked for and granted in open court and as the record discloses that said minutes were not then or thereafter approved and signed by the judge, said order of appeal is null and void and without effect. Motion to Dismiss Appeal. It is conceded by appellee, as the certified minutes in the record accurately disclose, that the appeal was moved for in open court and at the same time granted by the court. The record does not disclose that the minutes of that day were formally approved and signed by the judge, and it is because of the lack of such formal approval and signing that appellee contends the appeal should be dismissed. His counsel concedes, however, that there is no codal or statutory law requiring that, for court minutes to be effective as such, it is imperative that they be signed by the presiding judge. We know of no such law. It has not been the custom of the court aquo that the judge sign the minutes after being transcribed into the proper record book for preservation. The clerk of a district court is an integral part of such tribunal, and is charged with the performance of important ministerial functions and duties, among which are these: That he shall keep at least two record books, in one of which he shall set down in order the titles of all causes pending before the court, and in the other he shall set down all the orders and judgments rendered, as well as the motions made by the parties, or their counsel (Dart’s Code Prac. arts. 775, 776, 777). This last book is what is commonly referred to as the minute book. It is the invariable custom in all district courts, so far as we are apprised, that the clerk reads aloud in open court each morning the minutes of the proceedings had therein the preceding day. Errors or omissions are then corrected or supplied, and, as thus amended, the minutes are declared approved by the judge. Whether he signs them’ after being approved is immaterial to their effectiveness. Having been kept by the clerk, they become the acts of the court, and are entitled to the same weight and [774] credit as though written by the judge himself; and, as said in State ex rel. Attorney General v. Lazarus, 39 La. Ann. 142,152,1 So. 361, 368: “In our jurisprudence, the minutes of a court have always been clothed with an authenticity which borders on sanctity.” In the present case, the clerk has attached to the. record a long list of proceedings jn the case, including oral motion for and qrd£¿granting,the appeal, which he certifies tp..be tire, true and correct minute entries in the ca^e., The fact that these minutes have not been .assailed as to their correctness, and now stand upon the court records as its own acts, raises a strong presumption that they have been 'approved by the judge. This record, as it stands, meets all the requirements of law and, cohsequently, is a valid basis upon which the appeal may be sustained. The motion to' dismiss is denied: